[Federal Register Volume 70, Number 146 (Monday, August 1, 2005)]
[Rules and Regulations]
[Pages 44066-44069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15142]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 050510127-5190-02; I.D. 050305D]
RIN 0648-AS35


Fisheries of the Northeastern United States; Atlantic Deep-Sea 
Red Crab Fishery; Framework Adjustment 1 to the Atlantic Deep-Sea Red 
Crab Fishery Management Plan

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS issues final regulations to implement Framework 
Adjustment 1 to the Atlantic Deep-Sea Red Crab (Red Crab) Fishery 
Management Plan (FMP). This final rule modifies the existing annual 
review and specification process by allowing specifications to be set 
for up to 3 years at a time, and continues the current target total 
allowable catch (TAC) of 5.928 million lb (2.69 million kg) and fleet 
days-at-sea (DAS) of 780 fleet DAS for fishing year (FY) 2006 and 
FY2007. The purpose of this action is to conserve and manage the red 
crab resource, reduce the staff resources necessary to effectively 
manage this fishery, and provide consistency and predictability to the 
industry.

DATES: This rule is effective August 31, 2005.

ADDRESSES: Copies of supporting documents, including the Environmental 
Assessment (EA), Regulatory Impact Review (RIR), the Initial Regulatory 
Flexibility Analysis (IRFA), and Stock Assessment and Fishery 
Evaluation (SAFE) Report, are available from Paul J. Howard,

[[Page 44067]]

Executive Director, New England Fishery Management Council, 50 Water 
Street, Mill 2, Newburyport, MA 01950. The EA/RIR/IRFA is also 
accessible via the Internet at http://www.nero.nmfs.gov. The Final 
Regulatory Flexibility Analysis (FRFA) consists of the IRFA, public 
comments and responses contained in this final rule, and the summary of 
impacts and alternatives contained in this final rule.

FOR FURTHER INFORMATION CONTACT: E. Martin Jaffe, Fishery Policy 
Analyst, (978) 281-9272.

SUPPLEMENTARY INFORMATION: This final rule implements measures 
contained in Framework Adjustment 1 to the FMP (Framework 1) that 
modify the existing annual review and specifications process by 
allowing specifications to be set for up to 3 years at a time, and 
continues the current target total allowable catch (TAC) of 5.928 
million lb (2.69 million kg) and 780 fleet DAS for FY2006 and FY2007. 
Details concerning the justification for and development of Framework 1 
and the implementing regulations were provided in the preamble to the 
proposed rule (70 FR 29265, May 20, 2005) and are not repeated here.
    Multi-Year Specifications Process
    The Council identified 3 years as an appropriate length of time to 
reduce the administrative burden associated with an annual review cycle 
without increasing the risk of over-harvesting the red crab resource. 
The appropriate environmental and regulatory reviews required under the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), the National Environmental Policy Act (NEPA), and other 
applicable laws will be completed during the year in which 3-year 
specifications are set. The Red Crab Plan Development Team (PDT) will 
complete an updated SAFE Report every 3 years, and recommend 
specifications for up to 3 of the following fishing years, and will 
continue to evaluate the red crab stock and fishery status annually. 
The annual evaluation will focus on the most recent fishery-dependent 
information including, but not limited to, DAS used and red crab 
landings. More comprehensive analyses will be conducted in the SAFE 
Report every 3 years. The Council retains the flexibility to set red 
crab specifications for less than 3 years based on new information and/
or recommendations from the PDT.
    Multi-year specifications provide the industry with greater 
regulatory consistency and predictability, and simplifies the process 
by reducing the frequency of Council decision-making and NMFS 
rulemaking. However, the maximum 3-year specification process does not 
prevent the Council from changing specifications during the interim 
years, if information obtained during the annual review indicates that 
the red crab specifications warrant a change, e.g., to comply fully 
with the Magnuson-Stevens Act.
    This action is not expected to have any substantial direct social 
or economic impact on the red crab fishery. All potential impacts on 
the resources associated with this fishery will derive from the 
additional level of risk to these resources that could occur if the 
specifications are set at too high a level. If specifications are set 
too high, then there could be a greater risk of overfishing. However, 
the annual review required under this action provides the opportunity 
for the Council to adjust the out-year specifications, if new 
information indicates that the out-year specifications were set at an 
inappropriate level.

FY2006 and FY2007 Specifications

    For FY2006 and FY2007, this action continues the current (FY2005) 
TAC of 5.928 million lb (2.69 million kg) and 780 fleet DAS. Because 
the small fishing fleet has neither exceeded an annual TAC nor used all 
of its allocated DAS since implementation of the FMP, landings are not 
expected to exceed established amounts.
    The measures implemented under the FMP are expected to continue to 
protect the resource from overexploitation and maintain a sustainable 
fishery. Because this action maintains the status quo, it is expected 
to have the same effect as previously analyzed actions.
    Because the FMP is managed under a target TAC, rather than a hard 
TAC requiring the closing of the fishery when the TAC is reached, there 
is no direct mechanism to prevent the fishery from exceeding the TAC; 
however, the DAS management program implemented under the FMP was 
designed to constrain red crab fishing effort to a level consistent 
with, or less than that which would allow the resource to produce 
maximum sustainable yield, while still providing sufficient opportunity 
to harvest the target TAC. Therefore, as DAS are adjusted, the level of 
potential red crab harvest is expected to adjust accordingly, assuming 
a constant harvest rate per day-at-sea.
    In terms of the biological impacts on other non-target species and 
the ecosystem, based on analysis in the FMP/EIS, it is unlikely that 
any of the alternatives in the EA/RIR/IRFA would have an impact. There 
is very little known about the interactions of the deep-sea red crab 
with other species and their associated communities. The FMP explains 
that initial reports from industry members indicate that there is very 
little, if any, bycatch of other species in the directed red crab 
fishery. According to the recent SAFE Report (October 2004), there are 
no records of observed red crab trips in the observer database, and the 
trips that are recorded in the Vessel Trip Report (VTR) database have 
very little bycatch information. The FMP did identify that the bycatch 
of red crab in other fisheries may be a more substantial issue. 
However, the bycatch of red crab in other fisheries is not pertinent to 
this action.

Comments and Responses

    During the comment period for the proposed rule (70 FR 29265, May 
20, 2005), which ended June 20, 2005, two e-mails with comments were 
received from the same commenter.
    Comment: The commenter is opposed to a multi-year time frame and 
stated that the stock conditions change annually, and that a multi-year 
time frame lends itself to less accurate setting of quotas.
    Response: The PDT will continue to undertake an annual evaluation 
of the red crab stock and fishery status. The multi-year specification 
process does not prevent the Council from setting specifications during 
the interim years, if information obtained during the annual review 
indicates that the red crab specifications warrant a change.
    Comment: The commenter stated that the stock is overfished and that 
the quota should be cut by 50 percent this year, and by 10 percent each 
year thereafter.
    Response: NMFS determined that the stock is not overfished. The 
commenter gave no specific rationale for the suggestion that the TAC 
and fleet DAS be reduced from what was proposed. The reasons presented 
by the Council and NMFS for implementing these specifications are 
discussed in the preambles to the proposed rule and this final rule, 
and are sufficiently analyzed within the Framework 1 document. These 
specifications were developed based on the best scientific data 
available at the time, in accordance with the requirements of the 
Magnuson-Stevens Act. There is no known scientific basis for reducing 
the target TAC and fleet DAS allocation to the levels suggested by the 
commenter.
    Comment: The commenter suggested establishment of marine 
sanctuaries.
    Response: While NMFS acknowledges the importance of the general 
issues raised by the commenter, Framework 1

[[Page 44068]]

did not consider or recommend marine sanctuaries in this fishery, nor 
are the establishment of marine sanctuaries in this fishery called for 
under applicable law.

Changes from the Proposed Rule (70 FR 29265, May 20, 2005)

    Minor editorial changes were made from the proposed rule to the 
final rule to clarify the intent of, and improve the readability of, 
the regulatory text.

Classification

    The Administrator, Northeast Region, NMFS, determined that 
Framework 1 is necessary for the conservation and management of the red 
crab fishery and that it is consistent with the Magnuson-Stevens Act 
and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a FRFA, which incorporates the IRFA, a summary of the 
significant issues raised by the public comments in response to the 
IRFA, NMFS responses to those comments, and a summary of the analyses 
completed to support the action. A copy of the IRFA is available from 
the Council (see ADDRESSES).
    The preamble to the proposed rule (70 FR 29265, May 20, 2005) 
included a detailed summary of the analyses contained in the IRFA, and 
that discussion is not repeated here.

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    This rule is necessary to modify the existing annual review and 
specification process to allow specifications to be set for up to 3 
years in advance, and establishes the fishery specifications for FY2006 
and FY2007. The purpose of this rule is to conserve and manage the red 
crab resource, reduce the staff resources necessary to effectively 
manage this fishery, and provide consistency and predictability to the 
industry. A full description of the reasons why this action is being 
considered, and the objectives and legal basis for this action, are 
explained in the preambles to the proposed rule and this final rule and 
are not repeated here.

Summary of Significant Issues Raised in Public Comments

    No comments related to the economic analyses in the IRFA or the 
economic impacts of the rule generally were received. No changes to the 
proposed rule were made as a result of public comments. For a summary 
of the comments received, and NMFS's responses to them, see ``Comments 
and Responses.''

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    According to the Small Business Administration standards, any fish 
harvesting or hatchery business is a small entity if it is 
independently owned and operated and not dominant in its field of 
operations, and if it has annual receipts of not in excess of $3.5 
million. There are five vessels with limited access permits in this 
fishery, and all of them meet the criteria for small entities; 
therefore, there is no disproportionate effect between large and small 
entities. All the alternatives and analyses contained in Framework 1 
necessarily reflect on these five vessels.

Description of Projected Reporting, Recordkeeping, and other Compliance 
Requirements

    No additional reporting, recordkeeping, or other compliance 
requirements are included in this final rule.

Description of the Steps Taken to Minimize Economic Impacts on Small 
Entities

    The Council prepared an economic analysis that describes the 
economic impact that this rule will have on small entities. A summary 
of the analysis follows:
    As stated in the preamble to the proposed rule, this action 
incorporates two separate, but related, decisions of the Council. 
First, the Council determined that it would modify the annual review 
and specification process (Decision 1), rather than maintaining the 
status quo, which would require that specifications be set annually. 
After the Council elected to modify the annual review and specification 
process, it then decided to propose the specifications for FY2006 and 
FY2007 (Decision 2) in order to give effect to Decision 1.
    Decision 1, which dealt solely with the 3-year review and 
specification cycle for the alternatives considered, had two options. 
Option 1 would not have required an annual review of the status of the 
red crab resource and fishery, while Option 2 (this final action) does 
require such review. Neither option would have a direct economic impact 
on the vessels with limited access permits in the red crab fishery; 
therefore, there are no alternatives available that would result in 
different economic impacts on affected small entities.
    Decision 2, which dealt solely with the specifications for FY2006 
and FY2007, originally identified three alternatives. Two of these 
became the same alternative (i.e., the resulting target TAC and fleet 
DAS were equal) so that the remaining two were evaluated in the 
economic analysis once the Council's choice of specifications for 
FY2005 was made (see 70 FR 7190, February 11, 2005). This action will 
continue the same TAC (5.928 million lb (2.69 million kg) and fleet DAS 
allocation (780) as in FY2004 and FY2005. The non-preferred alternative 
would have continued the same target TAC, but would have allocated 5 
percent fewer total fleet DAS than the DAS allocation for FY2005. This 
allocation would have remained the same for FY2006 and FY2007. 
Therefore, under the non-preferred alternative, the DAS allocation for 
both fishing years would have been 741, rather than the 780 DAS to be 
implemented under this action.
    No adverse economic impacts associated with the fleet allocation of 
780 DAS are expected. Since the implementation of the FMP, in no year 
has any vessel utilized its full DAS allocation, such that no 
regulatory barriers have existed to prevent vessels from increasing 
their landings and revenue. Accordingly, the potential remains for 
vessels to increase their revenues over and above those of recent 
years.
    No significant alternatives exist that would increase expected 
direct economic benefits relative to the alternative implemented in 
this rule. The only potential way to increase expected economic 
benefits above those expected as a result of this rule would be to 
further increase the target TAC and DAS allocated to the fleet. 
However, all scenarios in which the target TAC and allocated fleet DAS 
are higher than 5.928 million lb (2.69 million kg) and 780 DAS, 
respectively, would compromise the objective of the FMP and the legal 
mandate of the Magnuson-Stevens Act to prevent overfishing. This action 
is not expected to alter the fishing practices of the four vessels 
actively participating, of the five vessels permitted, in the fishery.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule, or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit

[[Page 44069]]

holders that also serves as a small entity compliance guide (the guide) 
was prepared. Copies of this final rule are available from the NMFS 
Northeast Regional Office, and the guide, i.e., permit holder letter, 
will be sent to all holders of limited access permits for the red crab 
fishery. The guide and this final rule are available at the following 
web site: http://www.nero.noaa.gov/nero/.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: July 25, 2005.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

0
For the reasons stated in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq.

0
2. Section 648.260 is amended by revising the section heading and 
paragraphs (a) introductory text, (b) introductory text, and (b)(1) to 
read as follows:


Sec.  648.260  Specifications.

    (a) Process for setting specifications. The Council's Red Crab Plan 
Development Team (PDT) shall prepare a Stock Evaluation and Assessment 
(SAFE) Report at least every 3 years. Based on the SAFE Report, the PDT 
shall develop and present to the Council recommended specifications as 
defined in this paragraph (a) for up to 3 fishing years. The PDT shall 
meet at least once annually during the intervening years between SAFE 
Reports to review the status of the stock and the fishery. Based on 
such review, the PDT shall provide a report to the Council on any 
changes or new information about the red crab stock and/or fishery, and 
it shall recommend whether the specifications for the upcoming years 
need to be modified. The annual review shall be limited in scope and 
shall concentrate on the most recent fishery-dependent information 
including, but not limited to, days-at-sea (DAS) used and red crab 
landings. In the event that the PDT recommends an adjustment to the 
specifications, the PDT shall prepare a supplemental specifications 
package for a specific time duration up to 3 years. Specifications 
include the specification of OY, the setting of any target TACs, 
allocation of DAS, and/or adjustments to trip/possession limits.
* * * * *
    (b) Development of specifications. In developing the management 
measures and specifications, the PDT shall review at least the 
following data, if available: Commercial catch data; current estimates 
of fishing mortality and catch-per-unit-effort (CPUE); stock status; 
recent estimates of recruitment; virtual population analysis results 
and other estimates of stock size; sea sampling, port sampling, and 
survey data or, if sea sampling data are unavailable, length frequency 
information from port sampling and/or surveys; impact of other 
fisheries on the mortality of red crabs; and any other relevant 
information.
    (1) The PDT, after its review of the available information on the 
status of the stock and the fishery, may recommend to the Council any 
measures necessary to assure that the specifications will not be 
exceeded, as well as changes to the appropriate specifications.
* * * * *
[FR Doc. 05-15142 Filed 7-29-05; 8:45 am]
BILLING CODE 3510-22-S